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Home My WebLink About9A - PAH Products MEETING DATE: AGENDA #: PREPARED BY: PRESENTER: AGENDA ITEM: DISCUSSION: 4646 Dakota Street SE Prior Lake. MN 55372 CITY COUNCIL AGENDA REPORT AUGUST 2, 2010 9A STEVE ALBRECHT, DIRECTOR OF PUBLIC WORKS STEVE ALBRECHT, DIRECTOR OF PUBLIC WORKS CONSIDER APPROVAL OF A REPORT REGARDING A DRAFT ORDINANCE PROHIBITING THE USE OF COAL TAR-BASED SEALER PRODUCTS Introduction The purpose of this report is for the City Council to discuss whether they wish to adopt an ordinance that prohibits the use of sealer products containing coal tar within the City of Prior Lake following a public hearing conducted by the LAC. Historv At the May 3rd City Council meeting, staff was directed to report back to the City Council with a draft ordinance prohibiting the use of sealer products containing coal tar. The MPCA and recent studies have identified PAHs (polycyclic aromatic hydrocarbons) as harmful to fish and with prolonged exposure a potential cancer risk to humans. Most PAHs in the environment are from incomplete burning of carbon-containing materials like oil, wood, garbage or coal. One of the sources of PAHs is coal tar based sealers used on asphalt pavement. There are basically two kinds of sealers for paved surfaces: coal tar-based and asphalt-based. The coal tar variety is more resilient, but contains a much higher levels of PAHs. Studies identify runoff from parking lots and driveways coated with coal tar sealers as containing PAHs concentration 65 times higher than uncoated pavement. Runoff from asphalt based sealers has PAHs concentrations of about 10 times the uncoated pavement. Through runoff the PAHs enters storm water ponds and water bodies. The costs of cleaning storm water ponds can increase by more than 40% due to the special requirements for disposal of sediment containing PAHs. Several Cities across the U.S. have banned coal tar-based sealers. Only White Bear Lake has banned the use of these sealers in Minnesota. In 2009 the State of Minnesota banned the purchase and use of these sealers by the State. The State also restricted grant funds available for the cleanup of contaminated sediments. Only local units of government that have adopted an ordinance restricting the use of coal tar-sealers will be eligible for grant funding of up to $100,000. In 2010 the House Environmental R:\CounciI12010 Agenda Reportsl08 02 10\Coal Tar Report Agenda.docR:\Council\20 1 0 Agenda Reports\08 02 lO\Coal Tar Report Agenda.doc Policy Committee held an informational hearing on Coal Tar Sealants. Legislation restricting the sealers was introduce too late to be considered but it is anticipated that the legislation will be considered next year. The League of Minnesota Cities (LMC) and Metro Cities strongly supports the ban and has drafted model ordinances for use by cities. Current Circumstances City Staff has prepared a draft ordinance for City Council consideration based on a model LMC Ordinance. This ordinance prohibits the following: 1) No person shall apply any undiluted coal tar-based sealer to any driveway, parking lot, or other surface within the City of Prior Lake. 2) No person shall contract with any commercial sealer product applicator, residential or commercial developer, or any other person for the application of any undiluted coal tar-based sealer to any driveway, parking lot, or other surface within the City. 3) No commercial sealer product applicator, residential or commercial developer, or other similar individual or organization shall direct any employee, independent contractor, volunteer, or other person to apply any undiluted coal tar-based sealer to any driveway, parking lot, or other surface within the City. Also included for Council review is a copy of the White Bear Lake Ordinance which expanded the model LMC Ordinance to include prohibition of the use and sale of all coal tar sealers both diluted and undiluted within the City. Conclusion The City has not held meetings with commercial or industry groups on this issue. Under current State Law only White Bear Lake is eligible for grants related to PAHs contaminated soil removal. The maximum grant amount is capped at $1 OOk. It appears likely that the State will consider a statewide ban next spring in which case the City's ordinance unless more restrictive would be rendered moot. Should the City Council wish to pursue the ordinance Staff would recommend that the LAC hold a public hearing on the draft ordinance to allow input from impacted businesses and residents. ISSUES: In 2009 the City tested seven ponds prior to maintenance and sediment removal. One of the seven ponds tested positive for high levels of carcinogenic PAHs. Sediment was not removed from this pond due to cost increases estimated to be 40% more for removal and disposal of contaminated soils. In 2010 the City tested eleven ponds prior to design of the 2011 Pond Maintenance Project. Of the eleven ponds two were found to have high levels of carcinogenic PAHs present. At some point the City will need to remove the contaminated sediment. The coal tar ordinance would allow the City access to potential future grants. However should the state pass a state-wide ban next year the City's ordinance would be irrelevant unless more restrictive than the State Law which in 2010 was based on the model ordinance. R:ICounci112010 Agenda Reportsl08 02 10\Coal Tar Report Agenda.doc 2 An analysis of the pond locations indicates that there is no discernable pattern for which ponds have high levels of carcinogenic PAHs in Prior Lake. Coal Tar is only one source of PAHs and the City has not engaged contractors or the Pavement Coating Technology Council on the issue to ascertain the impacts of a ban. Based on similar cases it appears the biggest impact is that coal tar based sealer is the most desirable based on its resiliency of 3-5 years versus a typical life of 2-3 years for asphalt based sealers. Local retailers such as Carlson Hardware, Lowes and Home Depot have already stopped selling the coal tar based sealer. It appears the primary impact will be on commercial applicators. FINANCIAL IMPACT: High levels of carcinogenic PAHs increase the costs of storm water maintenance activities by 40% or more due to special land filling requirements for sediment. However it is unlikely a ban on sealers is going to eliminate all PAHs migration into water bodies. It does however make the City eligible for grants to clean up contaminated soils. At this time no grant solicitation has been made. The prohibition of this product could impact commercial driveway and parking lot sealing companies. ALTERNATIVES: 1. Provide Staff with direction on the draft Coal Tar Sealer Ordinance and desired public input process. 2. Direct Staff to continue to monitor State progress on the State Wide Coal Tar ordinance in 2011. 3. Table this agenda item for a specific reason and provide staff with direction. 4. Deny this agenda item for a specific reason and provide staff with direction. RECOMMENDED Alternatives 1 or 2. MOTION: RICoLlncil12010 Agenda Reportsl08 0210lCoal Tar Report Agenda.doc 3 PRIOR LAKE CITY CODE XXX.XXX xxx.x01 xxx.x02 xxx.x03 COAL TAR-BASED SEALER PRODUCTS The City of Prior Lake understands lakes, rivers, streams and other bodies of water are natural assets which enhance the environmental, recreational, cultural and economic resources and contribute to the general health and welfare of the community. The use of sealers on asphalt driveways is a cqmmon practice. However, scientific studies on the use of driveway sea.I.~~hl!lve demonstrated a relationship between stormwater runoff aqg<C~ftain health and environmental concerns. /:. , The purpose of this ordinance is tqr~.gulate the use<~tsealer products within the City of Prior Lake, in order to pr:qtect;<restore, and preserve the quality of its waters. .'V/// Definitions: Except as may otherWi~~<be p~9~i<:ied or c1ea~IYifu8Iied by context, all terms shall be giv~mt.Q.~ir commonIY;~H~~pted definitions. Forthe purpose of this ordinance, the fongWi~9gefinitions sHiji1i3Pply unless the context clear indicates or requires a;q(ffereijtmeaning: ...... '.","-' ",'.-"""-" ., ',',',', .. '.,,' ",".,',">', '/// ,., ,,,,,-,.,.,,,., ,","'. "'. -_,'0""""."'" , ".. .....,'..,.,... ",-, Asphalt-based sealer - A petroleum~based seafermaterial that is commonly used on c,iriveways, parkingldts, andothef:surfaces.and which does not contain coal tar. . ," ..... . P' p.. ~.,<," ;'./..'./. .. c'..". ".C' '" ., ., .. , -. ,',', ,-, , , , .. .. ....,., ,.""-_."'.,',,,,-,,," ' .. .. ,',',.;, ',',',;',',',,, --"'/>>:'-' > >.. -'>>::>,'-\ ::>/>>>' Coal Tar -a byproduct of the process used to refine coal. ,...,.,.. , -, ..",-.---.,. .. '., ..,.,.,.,"," "", ""."" ,,,,.;, ,"'" ",,,,,,,--,.,.-,,,.. -"",., ""..,,- """,.,.,.,.,,<..,.,, -.', ,..'....-.,-. ,',"','..""'..".-',.,.'-""-"'-'.,' '-"','; . Undiluted COell Tar~baseaS'Cller.4A. sealer material containing coal tar that has nott;>een mix~dwith asphliitand which is commonly used on driveways, parking lots':-a nd other~urfaces. . c. . .. . . .' '.. .',.. ~-..; ','; '; , .. ", .",.;;;, '..'..;..',,"-" '. '. . City - The City of Prior Uat<e, ".';.'.. ' MPg~- The MinQ~~ota Pollution Control Agency. PAHs\~f:?:Qlycyg!i(:Aromatic Hydrocarbons. A group of organic chemicals formed during thei~~~!'hPlete burning of coal, oil, gas, or other organic substances. Present in coal tar and believed harmful to humans, fish, and other aquatic life. Prohibitions: 1) No person shall apply any undiluted coal tar-based sealer to any driveway, parking lot, or other surface within the City of Prior Lake. 2) No person shall contract with any commercial sealer product applicator, residential or commercial developer, or any other person for the application of City of Prior Lake xxx.x04 xxx.x05 xxx.xxx: xxx.xxx any undiluted coal tar-based sealer to any driveway, parking lot, or other surface within the City. 3) No commercial sealer product applicator, residential or commercial developer, or other similar individual or organization shall direct any employee, independent contractor, volunteer, or other person to apply any undiluted coal tar-based sealer to any driveway, parking lot, or other surface within the City. Exemption: Upon the express written approval from both the City and the MPCA, a person conducting bona fide researchpn the effects of undiluted coal tar-based sealer products or PAHs on the enyirqoi'nent shall be exempt from the prohibitions provided in Section 3. Asphalt-based Sealcoat Products: Th~provisiq~~ of this ordinance shall only apply to use of undiluted coal tar-b9i~~Q sealer in th~9ity and shall not affect the use of asphalt-based sealer Pro~!.-I9~S>Within the City.i> '" -"", ,........ "" PENALTY: Any person violating thet~frnS 9:f~~i$ Section shall,.MRon conviction thereof, be found gui.ltYOf a misdemeaq~J~ngshall be punishedjn accordance with the penalties estal.p......!il!)!1....~d by Minneso.t$Statutes. Each day the offending condition exists or is m~lnt~lrl~~>HPon thepr~p:~rty shall constitute a separate o~n~. ... . ^" -"'.",-.,'-' "" c.....'. ^","., ,.............. ,-".,', .,-,,, ,........... "".''',', "",,., <.,.'-'..'..'..'..'..'..'..',," '-".,'/.,',.", -"..'-'."." .....-............. -........ .-.-..<.""-,'",',',, <..'..'''.'''.'..<<'.'''..'//. -'.,'.,"/,", -' -'," "/.,",",,-',,',,-',.' ....................... --..-', .,-, EFFECTIVE DATE: This ordinancebecomes~ffective on the date of its publication, or uponJhe publicatio!iof a summary of the ordinance as provided by Minn. Stat. S 412;191, subd. 4,;:is it may be amended from time to time, which the reqt,Jireniial1tsof Minn. Stat. s 331A.01, subd. 10, as it may be froni>tlmetotime.'. .... If anY.PJovision of this ordinance is found to be invalid for any conip~tent jurisdiction, the validity of the remaining be affected. City of Prior Lake ORDINANCE NO. 10-4-1069 AN ORDINANCE PROHIBITING THE USE AND SALE OF COAL TAR-BASED SEALANTS WITHIN THE CITY OF WHITE BEAR lAKE, MINNESOTA THE CITY COUNCIL OF THE CITY OF WHITE BEAR LAKE DOES ORDAIN: SECTION J. The Municipal Code Is hereby amended by adding Section 511 as follows: SECTION 1. PURPOSE. The City of White Bear lake highly values lakes, rivers, streams and other bodies of water as natural assets which enhance the environmental, recreational, cultural and economic resources and contribute to the general health and welfare of the community. The use of sealers on asphalt surfaces is a common maintenance practice. However, scientific studies on the use of pavement sealers have demonstrated a relationship between stormwater runoff and certain health and environmental conditions. including the presence of Polycyclic Aromatic Hydrocarbons, a known carcinogen. The purpose of this ordinance is to regulate the use of sealer products within the City of White Bear Lake, in order to protect, restore, and preserve the quality of its waters. Further, It Is the purpose of this ordinance to enhance compliance with the application prohibition through regulating sale of certain products. SECTION 2. DEFINITIONS. Except as may otherwise be provided or clearly Implied by context, all terms shall be given their commonly accepted definitions. For the purpose of this ordinance, the following definitions shall apply unless the context clear Indicates or requires a different meaning: ASPHALT-BASED SEALER. A petroleum-based sealer material that Is commonly used on driveways, parking lots, and other surfaces and which does not contain coal tar. COAL TAR. A byproduct of the process used to refine coal. COAL TAR-BASED SEALER. A sealer materIal containing coal tar and is for use on an asphalt or concrete surface, Including a driveway or parking area. C/TY. The City of White Bear Lake. PAHs. Polycyclic Aromatic Hydrocarbons. A group of organic chemicals formed during the Incomplete burning of coal. 011, gas, or other organic substances. Present In coal tar and believed harmful to humans, fish, and other aquatic life. SECTION 3. USE OF COAL TAR-BASED SEALER PROHIBITED. A. No person shall apply any coal tar-based sealer to any driveway, parking lot, or other surface within the City of White Bear Lake. B. No person shall contractwilh any commercial sealer product applicator, residential or commercial developer, or any other person for the application of any coal tar-based sealer to any driveway, parking lot, or other surface within the City. C. No commercial sealer product applicator, residential or commercial developer, or other similar Individual or organization shall direct any employee, independent contractor, volunteer, or other person to apply any coal tar-based sealer to any driveway, parking lot, or other surface within the City. A person who owns property on which a coal tar-based sealer Is used is presumed to have used a coal tar-based sealer In violation of this section. SECTION 4. SALE OF COAL TAR-BASED SEALER RESTRICTED A person may not sell a coal tar-based sealer product within the City, unless: 1) The sale Is to a person who Intends to use the coal tar-based sealer outside the City's planning jurlsdicllon; and 2) The seller requires the purchaser to complete and sign a form provided by the City that Includes: (a) The name, address, and phone number of the purchase, (b) (c) (d) The date of the purchase, . The quantity of coal tar-based sealer purchased, A statement that the coal tar-based sealer will not be used wllhin the City of White BearLake,and An affirmation by the purchaser that the information on the form Is correct, and~- PO (e) 3) The seller retains the completed form for a period of not less than two years and allows the City to . inspect or copy of the form upon request. SECTION 6. ASPHALT-BASED SEALCOAT PRODUCTS. The provisions of this ordinance shall only apply to use of coal tar-based sealer in the City and shall not affect the use or sale of asphalt-based sealer products within the City. SECTION 6. PENAL TV. Any person convicted of violating any provision of this ordinance Is guilty of a misdemeanor and shall be punished by a fine not to exceed one thousand dollars ($1,000.00) or imprisonment for not more than ninety (90) days, or both, plus the costs of prosecution In either case. SECTION 7. SEVERABILITY. If any provision of this ordinance Is found to be invalid for any reason by a court of competent jurisdiction, the valldlty of the remaining provisions shall not be affected. SECTION II. This ordinance shall take effect and be In force on July 1, 2010. Passed by the City Council of White Bear Lake, Minnesota, this 27TH day of APRIL, 20.l.Q.. First Reading: JANUARY 26. 2010 Second Reading; .APRIL 27. 2010 Final Publication: l>fA..Y-5..-20 10 Codified: .A'P1HT. ?R-0-2.0'O Posted on web: APRIL 28. 2010 a~, U Emerson, Mayor Attest &l~\J /{~ Cory Vadnais, City Clerk